The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACINTA DANKS
CIVIL ACTION
VERSUS NO: 21-1806
PHILLIP GRAYSON, ET AL. SECTION: “J” (1)
ORDER & REASONS
Before the court is a Motion for Summary Judgment (Rec. Doc. 107) filed by
Defendants: the City of Kenner, former Police Chief Michael J. Glaser, and Chase
Lawler. Plaintiff has filed an opposition (Rec. Doc. 122) to which the Defendants have
replied (Rec. Doc. 127). Also before the Court are two motions in limine. The first is a
Motion in Limine to Exclude and/or Limit Evidence or Testimony from Craig Ledet,
D.C. (Rec. Doc. 107), and the second is a Motion in Limine to Exclude and/or Limit
Evidence or Testimony from Sheetal Patel, Ph.D. (Rec. Doc. 108). Plaintiff has
opposed both motions (Rec. Docs. 118 and 119 respectively), and Defendants have
filed replies. (Rec. Docs. 121, 133). Having considered the motions, legal memoranda,
record, and appliable law, the Court finds that the Motion for Summary Judgment
(Rec. Doc. 110) should be GRANTED in part and DENIED in part. The motion
in limine regarding Dr. Craig Ledet (Rec. Doc. 107) should be GRANTED, and the
motion in limine regarding Dr. Sheetal Patel (Rec. Doc. 108) should be GRANTED
in part and DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
This case arises from a traffic stop on October 11, 2020 around 12:30a.m.
Plaintiff, Jacinta Danks, was the front seat passenger in a vehicle operated by her
brother. The vehicle was stopped for an expired temporary paper license plate by
Defendant, Officer Phillip Grayson (“P. Grayson”), with the City of Kenner Police
Department. When the vehicle was pulled over, it initially stopped, and then, as P.
Grayson began to exit his patrol unit, the vehicle accelerated away. After a brief
pursuit, the vehicle came to a stop and the driver, Plaintiff’s brother, fled from the
car. P. Grayson pursued and ultimately apprehended him.
P. Grayson then returned to the stopped vehicle where Plaintiff and a
passenger remained in the backseat. Defendants, Officer Daniel Grayson (“D.
Grayson”) and Officer Chase Lawler (“Lawler”) joined P. Grayson (collectively,
“Kenner Officers”). Plaintiff alleges that the Kenner Officers rushed to the passenger
side of the car where she was seated, and at least one had their gun pointed at her.
She claims that they began yelling at her while she sat with her hands in the air, but
she could not make out what they were saying. Plaintiff alleges that she was
disoriented and frightened by the Kenner Officers’ aggressive shouting and the
manner in which they approached the car. This fear, she claims, momentarily
paralyzed her, and she found herself unable to immediately speak or open the door.
Eventually able to unlock and open the door, Plaintiff alleges that the Kenner Officers
reached in and violently grabbed her. According to P Grayson, as he was attempting
to unbuckle Plaintiff’s seatbelt and remove her from the vehicle, she struggled with
him and bit his hand. Once P. Grayson unbuckled her seatbelt, Plaintiff claims the
Kenner Officers violently pulled her from the car. As she was being removed from the
car, Plaintiff alleges that her foot got caught between the cabin of the car and the car
door.
Once removed from the vehicle, Plaintiff claims that the Kenner Officers threw
her forcefully face-first to the ground and removed her phone and wallet from her
hands. Once her phone and wallet were out of her hands, Plaintiff alleges that her
hands were handcuffed behind her back. While handcuffed and lying face down on
the ground, Plaintiff claims that Lawler stepped on her back, pressing her further
towards the ground so hard that she could not move. Additionally, after she was
removed from the vehicle, Plaintiff alleges that her pants came down, exposing her
underwear and menstruation. Because she was handcuffed, Plaintiff claims that she
was unable to pull her pants back up, and she remained face down on the ground
with Lawler’s foot on her back and her pants pulled down for approximately five
minutes or more. Plaintiff alleges that she begged the Kenner Officers to pull her
pants up, and she squirmed in an attempt to do it herself until someone else pulled
them up.
Eventually, Plaintiff claims that she was yanked up, patted down, and read
her Miranda rights. She was charged with resisting arrest and assaulting an officer.
Plaintiff alleges she was put in the back of a police car, barefoot and handcuffed,
before her shoes were thrown to her in the back seat. The charge against Plaintiff for
resisting arrest was subsequently dismissed, and she was convicted of assaulting P.
Grayson on April 21, 2022. Finally, Plaintiff claims that her phone and wallet were
never returned to her. As a result of this incident, Plaintiff alleges that she has
experienced physical pain, a bruised handprint on her arm that lasted multiple
weeks, back pain, and serious emotional trauma.
Plaintiff filed the instant suit against the above-named Kenner Officers; City
of Kenner; former Police Chief Michael J. Glaser; and seven “bystander” officers for
violations of her federal and state civil rights. The “bystander” officers were
subsequently dismissed by Plaintiff without prejudice. Defendants then filed a
motion to dismiss (Rec. Doc. 50) which this Court granted in part and denied in part.
(Rec. Doc. 76). The remaining claims are the excessive force claim under 42 U.S.C. §
1983 against Defendant Lawler, the state law claim of battery against Defendant
Lawler, the state law claim of negligence against Defendant Lawler, the state law
claims of vicarious liability against former Police Chief Glaser and the City of Kenner,
and the Monell liability for failure to train claim under 42 U.S.C. § 1983 against
former Police Chief Glaser and the City of Kenner. The remaining Defendants have
now filed the instant motion for summary judgment on those remaining claims.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving
party can then defeat the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer that it may not
persuade the reasonable fact-finder to return a verdict in favor of the moving party.”
Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by merely pointing
out that the evidence in the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts
to the nonmoving party, who must, by submitting or referring to evidence, set out
specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may
not rest upon the pleadings but must identify specific facts that establish a genuine
issue for trial. See id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
I. CLAIMS AGAINST OFFICER LAWLER
Plaintiff has an excessive force claim as well as state law battery and
negligence claims against Officer Lawler arising out of his alleged action of stepping
on Plaintiff’s back while she was handcuffed and prone with her pants pulled down.
a. EXCESSIVE FORCE
“To establish a claim of excessive force under the Fourth Amendment,
plaintiffs must demonstrate: ‘(1) injury, (2) which resulted directly and only from a
use of force that was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.’” Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) (quoting Deville
v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). Fundamentally, “the touchstone of
our inquiry is simply the reasonableness of the force employed.” Buehler v. Dear, 27
F.4th 969, 981 (5th Cir. 2022). “Excessive force claims are necessarily fact-intensive;
whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and
circumstances of each particular case.’” Deville, 567 F.3d at 167 (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)).
The Court will first consider Plaintiff’s injury. Generally, to maintain a claim
for excessive force, a plaintiff need not demonstrate a significant injury, but the injury
must be more than de minimis. See Tarver v. City of Edna, 410 F.3d 745, 752 (5th
Cir. 2005). Recently, the Fifth Circuit has characterized the injury requirement as “a
sliding scale, not a hard cutoff.” Buehler, 27 F.4th at 982. This approach treats the
degree of injury—even if minor—as interrelated to the reasonableness and
excessiveness of the officer's force. “[A]lthough a de minimis injury is not cognizable,
the extent of injury necessary to satisfy the injury requirement is ‘directly related to
the amount of force that is constitutionally permissible under the
circumstances.’” Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir.
2017) (alternation in original) (quoting Brown v. Lynch, 524 F. App'x 69, 79 (5th Cir.
2013)). Accordingly, “[a]ny force found to be objectively unreasonable necessarily
exceeds the de minimis threshold, and, conversely, objectively reasonable force will
result in de minimis injuries only.” Id. (quoting Brown, 524 F. App'x at 79). In
other words, “as long as a plaintiff has suffered ‘some injury,’ even relatively
insignificant injuries and purely psychological injuries will prove cognizable when
resulting from an officer's unreasonably excessive force.” Id. (quoting Brown, 524 F.
App'x at 79). This means that if the officer's force was unreasonably excessive, Danks
need only show “some injury.”
Plaintiff alleges that Defendant Lawler used excessive force when he stepped
on her back while she was handcuffed and on the ground, causing her physical and
psychological injury. (Rec. Doc. 122, at 10). Defendants dispute whether Officer
Lawler was even present at the time of Plaintiff’s arrest. (Rec. Doc. 110 at 29).
However, there is a genuine issue of material fact as to the timing of Officer Lawler’s
presence at the scene. Although Officers P. Grayson, D. Grayson, and Lawler have
all testified that he was not present and therefore could not have acted as Plaintiff
claims, Ms. Danks testified that she saw Officer Lawler out of her peripheral vision
when he stepped on her. (Rec. Doc. 122-1, at 5). Therefore, there is conflicting
testimony as to the timing of the presence of Officer Lawler at the scene. This key
dispute alone presents a genuine issue of material fact. However, for this factual
dispute to prevent summary judgment, Plaintiff must be able to prove “some injury”
resulting from Officer Lawler’s actions.
As evidence of her injuries, Plaintiff has submitted the expert report of Dr. Craig
Ledet, a chiropractor who examined Plaintiff two years after the incident. Dr. Ledet
found that Ms. Danks suffered “joint dysfunction in the cervical, thoracic and lumbar
spine as well as the right sacroiliac joint dysfunction.” (Ledet Report, at 2). Dr. Ledet
opined that Plaintiff’s injuries “could have been caused by the traumatic event she
described to me that occurred on 10/10/20.” Id. at 3 (emphasis added). Plaintiff has
also submitted the expert report of Dr. Sheetal Patel, a psychologist who also
examined Ms. Danks over two years after the incident at issue. Dr. Patel diagnosed
Ms. Danks with PTSD, opining that this was “directly caused by the torment of the
violence and threats she experience by the police during the incident . . . .” (Patel
Report, at 7). Defendants have filed motions in limine to exclude the testimony of
both Dr. Ledet and Dr. Patel. (Rec. Docs. 107, 108). Therefore, in order to determine
whether summary judgment should be granted as to the excessive force claim, the
Court must first decide whether to admit or exclude this evidence.
i. Physical Injury: Dr. Craig Ledet
Defendants argue that Dr. Ledet’s testimony should be excluded or limited
because a plaintiff must show that their injuries resulting from excessive force
“resulted directly and only from a use of force that was clearly excessive.” Solis v.
Serrett, 31 F.4th 975, 981 (5th Cir. 2022). The argue that Dr. Ledet made no definitive
conclusions about Ms. Danks’ injuries because Dr. Ledet only opined that Ms. Danks’
symptoms could have resulted from the October 10th incident. Defendants assert that
a mere possibility of causation is not sufficient and therefore renders Dr. Ledet’s
opinion irrelevant. (Rec. Doc. 107, at 6). In opposition, Plaintiff argues that Dr. Ledet
“does not need to causally tie Ms. Danks’ injuries only to Defendant Lawler’s use of
excessive force and rule out all other possible causes,” but instead he only needs to
“eliminate the possibility that the alleged injuries were caused by a preexisting
condition or an action of a third party.” (Rec. Doc. 118, at 3, 4). However, in reply,
Defendants argue that Plaintiff’s opposition “did not address, in any meaningful way,
the glaring issue with respect to Dr. Ledet’s expert report and testimony—that he
could not relate Danks’ injuries to the incident in this case more probably than not.”
(Rec. Doc. 131, at 1). In fact, when directly asked in his deposition whether he could
say that that the Plaintiff’s complained of injuries were more probably than not
caused by the incident, Dr. Ledet specifically testified that he could not make this
conclusion. (Rec. Doc. 131, at 2, 3). Based on this testimony, the Court concludes that
Dr. Ledet’s testimony is irrelevant because it does not serve to establish the causation
of her injuries by a preponderance of the evidence. Therefore, Defendants’ Motion in
Limine to Exclude and/or Limit Evidence or Testimony from Craig Ledet, D.C. (Rec.
Doc. 107) is GRANTED, and the testimony of Dr. Ledet is hereby excluded.
ii. Psychological Injury: Dr. Sheetal Patel
Defendants argue that Dr. Patel’s testimony should be excluded or limited because
her opinion relates to the incident as a whole and because she does not differentiate
between the actions of other officers prior to Plaintiff’s arrest which have already
been dismissed and the remaining actions of Officer Lawler in forming her opinion.
(Rec. Doc. 108, at 6). Defendants argue that “in none of the explanations given for any
category of the [CAPS-5],1 does Dr. Patel or Danks mention or relate a symptom to
the allegations against Officer Lawler.” Id. at 7. In opposition, Plaintiff cites to Sampy
v. Rabb, 2021 WL 5279480, at *8 (W.D. La. Aug. 26, 2021) in which the court
considered a motion to dismiss where the plaintiff’s complaint did not specify which
injuries resulted from which alleged use of excessive force. Like in this case, the court
had already dismissed excessive force claims which arose prior to the plaintiff’s
arrest, but claims resulting from post-arrest actions of one of the officers remained.
The court held that plaintiff had sufficiently alleged that his injuries resulted from
this final act of violence even though he did not specifically state their cause because
each injury “could conceivably have resulted from the final alleged use of force.” Id.
Plaintiff also argues that Dr. Patel’s report eliminates the possibility that Ms. Danks’
psychological trauma was preexisting or caused by a third party, and that this is
sufficient to make it relevant. (Rec. Doc. 119, at 4, 5). In reply, Defendants argue that
1 The CAPS-5 is a diagnostic tool for PTSD.
Dr. Patel’s report does the exact opposite: it does not eliminate the possibility that
her PTSD was caused by third parties because it “expressly cites to the actions of
other officers occurring prior to Danks’ handcuffing.” (Rec. Doc. 133, at 2).
Furthermore, Defendants argue that Sampy is distinguishable because it merely
decided a motion to dismiss rather than ruling on the merits of any of the plaintiff’s
claims. (Rec. Doc. 133, at 1, 2).
Although Dr. Patel’s expert report does refer to actions which have now been
dismissed from this case, she does, at least in part, base her diagnosis on the alleged
actions of Officer Lawler. In recounting Plaintiff’s narrative, Dr. Patel reports that
Ms. Danks felt intense humiliation because of being stepped on by Officer Lawler
while her pants were pulled down. (Patel Report, at 3). Shame is then specifically
listed amongst the diagnostic criteria in the CAPS-5. (Patel Report, at 6). Dr. Patel
clearly based her diagnosis, at least in part, on the symptoms Ms. Danks experiences
as a result of the alleged actions of Officer Lawler. Therefore, the Court cannot say
that the testimony of Dr. Patel is irrelevant. Furthermore, any deficiency related to
Plaintiff’s initial failure to disclose Dr. Patel’s prior testifying cases has been cured
and is harmless. However, the Court finds that Defendants’ motion should be
GRANTED in part in that Dr. Patel’s testimony should be limited to psychological
injury stemming from the actions of Officer Lawler rather than from the actions of
the previously dismissed officers.
iii. Genuine Issue of Material Fact Relating to Injury
Returning to Plaintiff’s excessive force claim, the Court finds that there is a
genuine issue of material fact as to whether Plaintiff sustained injuries as the result
of Officer Lawler’s actions. Although Dr. Ledet’s testimony has been excluded,
Plaintiff may still rely on the testimony of Dr. Patel to establish that she has suffered
psychological injury as a result of being stepped on. Psychological injuries alone can
serve as a basis for liability under Section 1983. Tarver, 410 F.3d at 752. There are
genuine issues of material fact as to whether Officer Lawler was present at the scene
and whether his post arrest actions caused Ms. Danks to develop PTSD. Furthermore,
this Court has already held that if Officer Lawler acted as Plaintiff alleges in her
complaint, then he acted unreasonably in using excessive force. In the context of the
qualified immunity analysis the Court stated:
In evaluating Plaintiff’s claim for excessive force against Lawler, the
Court finds that Plaintiff has sufficiently pled facts to show he used
excessive force in violation of her constitutional rights. Although
Plaintiff’s injuries are de minimis and she had just bitten an officer, she
was lying face-first on the ground in handcuffs with her pants down. She
no longer posed any threat to an officer or anyone else because she was
subdued and restrained. While her squirming could have been construed
as resisting arrest, in conjunction with her alleged pleas for help and her
own efforts to get her pants back up, a reasonable officer would
understand what Plaintiff was attempting. Finally, per Plaintiff’s
claims, Lawler immediately stepped on her back and pushed her into
the ground so hard that she could not move. Therefore, Lawler violated
Plaintiff’s federal right to be free from excessive force under the Fourth
Amendment.
(Rec. Doc. 76, at 18). In fact, even Officer Lawler as well as several other officers
testified that if an officer acted as he allegedly did, this action would be in violation
of Kenner Police Department policy. (Rec. Doc. 122, at 10). Therefore, the Court finds
that a reasonable jury could find in favor of Plaintiff that Officer Lawler acted with
excessive force. Therefore, as to the excessive force claim, summary judgment is
DENIED.
b. STATE LAW CLAIMS AND VICARIOUS LIABILITY
Plaintiff has remaining claims against Officer Lawler for battery and
negligence under Louisiana law. Defendants argue that summary judgment should
be granted as to these claims because Officer Lawler was not have been present at
the scene to commit them. However, as previously discussed, there is a genuine issue
of material fact as to whether or not Officer Lawler was present at the scene at the
time Ms. Danks was laying on the ground. Therefore, summary judgment is DENIED
as to the state law battery and negligence claims against Officer Lawler and also
DENIED as to the vicarious liability claims.
II. MONELL LIABILITY FOR FAILURE TO TRAIN
A. City of Kenner
While neither state officials nor municipalities are vicariously liable for the
deprivation of constitutional rights by employees, each can be held liable for their
own acts or failures to act which themselves cause constitutional violations. See
Monell v. Dep’t of Social Services of City of N.Y., 436 U.S. 658, 694 (1978). To establish
municipal liability under § 1983, a plaintiff must prove that “(1) an official policy (2)
promulgated by the municipal policymaker (3) was the moving force behind the
violation of a constitutional right.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838,
847 (5th Cir. 2009). An official policy may take the form of a widespread practice that
is “so common and well-settled as to constitute a custom that fairly represents
municipal policy.” Id. A failure to train can amount to such a custom when a pattern
of similar incidents shows that “it should have been obvious to the policymakers that
the risk of serious injury was a highly predictable consequence of the failure to train.”
Id. (citation omitted). In a § 1983 claim for failure to supervise or train, the plaintiff
must show that: “(1) the supervisor either failed to supervise or train the subordinate
official; (2) a causal link exists between the failure to train or supervise and the
violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to
deliberate indifference.” Goodman v. Harris Cnty., 571 F.3d 388, 395–96 (5th Cir.
2009) (citation omitted).
Defendant has moved for summary judgment on Plaintiff’s failure to train
claim, arguing that “it is undisputed KPD trains its officers on the use of force
pursuant to its Use of Force Policy” which they argue “meets and exceeds the
requirements of the State of Louisiana Peace Officer Standards and Training
Council.” (Rec. Doc. 110, at 28). In response, Plaintiff argues that KPD’s training was
inadequate on three grounds: first, KPD officers are not trained “specifically on the
use of force against vehicle passengers”, second, “that KPD officers also receive
inadequate training on the consequences of putting bodyweight on a handcuffed
person in the prone position”, and third that “KPD officers receive inadequate
training on the use of force as a whole.” (Rec. Doc. 122, at 17, 18).
Turning to Plaintiff’s first argument that KPD should offer training about use
of force specific to vehicle passengers, Plaintiff does not cite to any case where a court
has held that such specific training is necessary, nor does Plaintiff attempt to
establish how this training would be any different from the general use of force
training that all KPD officers receive or how this general use of force training is
inadequate when applied to vehicle passengers. Furthermore, as Defendants point
out, Plaintiff was not a vehicle passenger at the time of Officer Lawler’s alleged use
of excessive force. Rather Plaintiff had been previously removed from the vehicle and
was already arrested. Therefore, the Court cannot find a failure to train on this
ground.
As to Plaintiff’s contention that KPD officers receive inadequate training on
the consequences of putting bodyweight on a handcuffed person in the prone position,
Plaintiff admits that officers are told that “putting their weight on the diaphragm of
an individual handcuffed in a prone position could cause suffocation.” (Rec. Doc. 122,
at 18). However, Plaintiff asserts that KPD’s training on this subject is inadequate
because “the totality of the alleged training on putting bodyweight on a handcuffed
person in a prone position is one bullet point in a 46-page training manual that covers
at least ten distinct topics on arrest techniques generally.” Id. Additionally, as to
Plaintiff’s contention that KPD’s use of force training as a whole is inadequate,
Plaintiff argues that “when KPD officers were asked to articulate their understanding
of the classroom concepts related to use of force . . . they were unable to convey what
they were taught.” Id. Plaintiff argues that this lack of memory on the part of KPD
officers is evidence that KPD’s training was inadequate. However, the Court cannot
impose liability on the City of Kenner for its officers’ own lapses of memory. The mere
fact that the officers in question could not recite their training from memory at worst
shows that they were not paying attention, but it cannot stand to establish that the
city did not adequately provide training. See Pinder v. Skero, 375 F. Supp. 3d 725,
745 (S.D. Tex. 2019).
However, the Fifth Circuit has acknowledged that “[t]he requirements of proof
of inadequacy of training and causation are, in many respects, intertwined,” due to
the need to present evidence of a “causal relationship between any shortcoming of the
officers’ training . . . and the injury complained of.” Pineda v. City of Houston, 291
F.3d 325, 334 (5th Cir. 2002). Plaintiff argues that “a series of police misconduct
complaints can put a municipality on notice that its police training is constitutionally
inadequate.” See Aswell v. Culpepper, 2015 WL 1638094, at *11-12 (E.D. La. Apr. 13,
2015). “Where municipal decision makers have notice that a training program does
not prevent constitutional violations, “[t]heir continued adherence to an approach
that they know or should know has failed to prevent tortious conduct by employees”
may rise to the level of ‘deliberate indifference.’” Hayward v. City of New Orleans,
2004 WL 258116 (E.D. La. Feb. 12, 2004) (citing Board of County Com’rs of Bryan
County Okl. v. Brown, 520 U.S. 397, 407 (1997)). Therefore, the Court may turn to
evidence of police misconduct to evaluate whether there is a genuine issue of material
fact as to the adequacy of the KPD’s training.
Plaintiff asserts that KPD and its Police Chief were on notice as to the
deficiency of KPD training because of numerous excessive force claims made against
KPD Officers. (Rec. Doc. 122, at 20). Plaintiff alleges that over a five-year period, KPD
documented “between eighteen and thirty-two citizen-initiated complaints” alleging
improper use of force. Id. Plaintiff also alleges that the reason the exact number of
complaints is uncertain is because the KPD does not engage in adequate record
keeping of the complaints it receives.2 Furthermore, Plaintiff argues that none of the
use of force complaints over this five-year period were reported as sustained or ever
resulted in any officer discipline. Id. at 21. Plaintiff contends that when and if the
complaints against the KPD are investigated, investigators are not even required to
interview the officers involved. Id. In fact, apparently none of the officers involved in
this case were questioned in response to Ms. Danks’ complaint. Id. at 22. Therefore,
Plaintiff asserts that these 18-32 instances of excessive force went not only un-
punished but also un-investigated.
Defendants, citing to the deposition of Captain Ortiz, instead argue that KPD
received only five excessive force complaints related to traffic stops since 2018, and
that just these traffic stop incidents, rather than all use of force complaints should be
considered. (Rec. Doc. 135, at 5). However, as Defendants themselves pointed out
when arguing that it is unnecessary for the KPD to have a specific policy for use of
2 Plaintiff contends “There are inconsistencies in KPD metrics. For example, some reports show that
between July 2017 and October 1, 2022 there were at least 32 citizen-initiated inquiries relating to
the use of force. Pltfs’ SMF 86. However, in its deposition testimony, the City acknowledged only 18
use of force complaints from January 1, 2018 to December 31, 2022. Pltfs’ SMF 84. From July 2017
to June 2018, there were 5 citizen-initiated inquiries relating to the use of force, indicating that the
discrepancy in the numbers is a factual inconsistency. Pltfs’ SMF 86.” (Rec. Doc. 122, at 8, fn. 4).
force relating to vehicle passengers, there is no reason why only use of force incidents
when a car was involved should be considered in determining whether KPD failed to
properly train its officers on use of force in general. Furthermore, the Fifth Circuit
has held that prior instances of excessive force are relevant in evaluating a failure to
train claim as long as they are “fairly similar” to what happened to the plaintiff. Est.
of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).
In the case of excessive use of force, a prior instance is “fairly similar” as long as it
involved injury to a third party. Id. Therefore, the relevant number of violations in
this case is the larger range of 18-32 complaints rather than this smaller number.
Defendants also argue (relying on their reduced count of five violations) that
Plaintiff cannot produce enough aggregate complaints to establish a pattern.
Defendants cite to cases in which 27 use of force incidents in the city of Fort Worth
and 11 in the city of Houston were inadequate to establish a pattern of misconduct.
See Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851–52 (5th Cir. 2009). Also see
Pineda, 291 F.3d at 329. However, the City of Kenner has a far smaller population
than either of these cities, making the 32 complaints a far higher rate of complaints
per capita than in either of the cases upon which Defendants rely. The Fifth Circuit
has held that the size of a police department is relevant in determining whether a
number of incidents can establish a pattern. Pineda, 291 F.3d at 329.
Finally, the Court finds it relevant that the KPD’s own troublesome record
keeping and pattern of surface-level-only investigations appears to cut against the
argument that they were unaware of or did not condone the use of excessive force. In
Peterson v. City of Fort Worth, Tex., the Fifth Circuit found it relevant that only four
of the 27 complaints against the City were “sustained” after investigation. 588 F.3d
at 852. The Court stated “that the department itself vaguely ruled most of its
complaints “not sustained” or “unfounded” is no assurance that these investigations
exonerate the City. To the contrary, that only four of the 27 complaints were
“sustained” after investigation may tilt in Peterson's favor.” Id. The Peterson court
ultimately found that the record as a whole could not support a claim against the
City. However, in this case because of the high volume of complaints, coupled with
the resulting lack of investigation and discipline, Plaintiff has established a genuine
issue of material fact as to whether the City of Kenner failed to adequately train its
employees on uses of force and whether it acted with deliberate indifference in failing
to correct the training once it was on notice of the inadequacy.
Having found that there is a genuine issue of material fact in regard to the
adequacy of the City of Kenner’s use of force training, the Court must now examine
whether there is a causal link between this alleged failure and the constitutional
violation suffered by Plaintiff. Defendants do not address this element in their motion
for summary judgment and instead hang their entire argument on the contention
that the KPD had a Use of Force policy and that Officer Lawler knew that the alleged
conduct of stepping on a handcuffed and prone individual would violate that policy.
(Rec. Doc. 110, at 28). “A pattern of tortious conduct by inadequately trained
employees may tend to show that the lack of proper training . . .is the ‘moving force’
behind the plaintiff’s injury,” and “municipal liability for failure to train may be
proper where it can be shown that policymakers were aware of, and acquiesced in, a
pattern of constitutional violations.” Brown, 520 U.S. at 407-08 (citing City of Canton,
Ohio v. Harris, 489 U.S. 378 (1989) (O’Connor, J. concurring in part and dissenting
in part)). The alleged pattern of violations that the KPD engaged in tends to show
that inadequate training was the moving force behind Ms. Danks’ injury. Therefore,
summary judgment as to Plaintiff’s Monell claim against the City of Kenner is
DENIED.
B. Former Police Chief Glaser
In their Motion to Dismiss (Rec. Doc. 50), Defendants argued that a “failure to
train” claim brought against a government official in his official capacity is the
equivalent of a suit against the governmental entity. (Rec. Doc. 50-3, at 26).
Therefore, Defendants contended the suits against the City of Kenner and against
Former Police Chief Glaser acting in his official capacity are a single claim in which
the suit against the governmental official is subsumed within his claim against the
governmental entity. The Court deferred in ruling on this issue, stating that there
was no reason to dismiss the potentially duplicative claims at the 12(b)(6) stage
although the claims against the City of Kenner and the Former Police Chief would be
evaluated on the same standard. (Rec. Doc. 76, at 20, 21).
Defendants do not even mention Chief Glaser in the portion of their
memorandum dedicated to Plaintiff’s Monell claim against the City of Kenner, nor do
they attempt to argue that the claims against Chief Glaser are subsumed within the
claims against the city. However, the law is clear that “a suit against a governmental
officer ‘in his official capacity’ is the same as a suit ‘against [the] entity of which [the]
officer is an agent, and victory in such an ‘official-capacity’ suit ‘imposes liability on
the entity that [the officer] represents.’” McMillan v. Monroe Cnty, Ala., 520 U.S. 781,
785 n.2 (1995) (citations omitted). Thus, when a plaintiff sues both a governmental
officer in his official capacity and a governmental entity for an identical claim, the
claim against the officer is “subsumed within [the plaintiff’s] identical claim against
[the government entity].” Goodman, 571 F.3d at 396. Because the only claims against
Former Chief Glaser are in his official capacity, and because the failure to train
claims against him as the policy making authority for the KPD are overlapping with
the claims against the City of Kenner, the Court finds that the claims against Officer
Glaser should be dismissed at this stage. Therefore, summary judgment is
GRANTED as to the claims against Former Police Chief Glaser.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment
(Rec. Doc. 110) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the motion in limine regarding Dr. Craig
Ledet (Rec. Doc. 107) is GRANTED, and the motion in limine regarding Dr. Sheetal
Patel (Ree. Doc. 108) is GRANTED in part and DENIED in part.
New Orleans, Louisiana, this 29th day of March, 2023.
Kaha
SXAXS
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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